Vele v Parkop [2008] PGSC 28; SC945 (30 October 2008)

SC945

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW No. 51 of 2007

APPLICATION UNDER SECTION 155(2) (B) OF THE CONSTITUTION
AND IN THE MATTER OF PART VIII OF THE ORGANIC LAW ON
NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN

WARI JAMES VELE
Applicant

AND

POWES PARKOP
Respondent

Waigani: Davani, Lay and Hartshorn JJ.
2008: 1st and 30th October

SUPREME COURT - CIVIL - Election Petition Review Rules - Rules 5/1/7/, 5/10/30 and 5/10/32 - application for leave not made within 14 days of decision - no application filed for extension of time or to dispense with Rule - application pursuant to Rule 5/10/32 made in the course of submissions - Considerations for the application of Rule 5/10/32 discussed.

Facts

The Respondent applies to strike out the Applicant's application for leave to review the decision of the National Court which dismissed the Applicant's petition against the election of the Respondent as governor of the National Capital District in the 2007 National Elections.

Held

1. An application for leave to review a decision on an election petition not filed, served and moved before a judge within 14 days of the decision sought to be reviewed, where extension of time is not granted within that 14 days, is rendered incompetent by the Rules, subject to any application under Rule 5/10/32.

2. The purpose of the Election Petition Review Rules is:

1. not to treat an election petition review as an ordinary matter but as a special matter requiring the applicant's constant and detailed attention;
2. to closely manage the review process;

100. to reduce to the minimum the time between the various steps in the review.
     

3. The times imposed by the Rules are tight and where prompt application is made for relief within the mandatory 14 days accompanied by a reasonable explanation, many circumstances will justify an extension of time under Rule 5/1/7 or after that time a dispensation from the requirements of the Rules under Rule 5/10/32;

4. An applicant under Rule 5/10/32 should explain (1) why a time limit was missed, a Rule not complied with or otherwise why dispensation is required, (2) any delay which has occurred in making the application, (3) that the relief sought by the applicant will not unduly prejudice the other party's case, (4) that the granted dispensation will enable all of the issues in contention to be promptly brought before the court without further delay.

PNG Cases Cited
Dick Mune v Paul Poto (1996) SC508;
The Election Of the Governor General (No.3) (2004) SC752
James Marabe v Tom Tomiape (No.2) (2007) SC856
Re Kunangel [1991] PNGLR 1
Ben Wafia v The State (2006) SC851
SCR No.6 of 2008 Michael Laimo v Andrew Trawen, Electoral Commissioner of Papua New Guinea and John Ilam, Returning Officer for South Bougainville Open Electorate 22 August 2008, unpublished and unreported judgment of Kapi CJ.
Avia Aihi v The State [1981] PNGLR 8
State v Colbert [1988-89] PNGLR 138
Erie Ovake Jarvie v Bonny Oveyara and Electoral Commission of Papua and New Guinea (2008) SC935

References
Constitution
Supreme Court Election Petition Review Rules

Counsel
A. Jerewai, For the Applicant
K. Naru, For the Respondent

30th October, 2008

1. BY THE COURT: The National Court dismissed Mr Vele's petition against the election of Mr Parkop to the National Parliament in the 2007 National Elections. Mr Vele filed an application in the Supreme Court for leave to review the decision of the National Court, pursuant to the powers of review given to the Supreme Court by the Constitution, s.155(2)(b).

2. Pursuant to the Constitution s184, the Supreme Court has made rules to govern reviews of election petition decisions. These are the Supreme Court Election Petition Review Rules, (the ‘Rules’) which form part of the Supreme Court Rules. Order 5 Sub-Division I Rule 7 of the Rules (Rule 5/1/7) provides:

"The Application for Leave shall be made within 14 days of the decision sought to be reviewed or within such further time as extended by the court upon application made within that 14 day period".

3. The decision of the National Court was made on the 30th November, 2007. It is common ground that the Applicant had until the 14th December, 2007 at the latest, to file his application. The Application was filed on 13th December, 2007. No application to extend time was made within the 14th days ending 14th December 2007, or at all.

4. Rule 5/10/30 provides:

"Where a party has not done any act required to be done, by or under these Rules or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court the court may on its own motion or on application by a party, at any stage of the proceedings:

1. order that the application for leave or application for review be dismissed where the defaulting party is the applicant;..."
   

5. Mr. Parkop makes application pursuant to that Rule to strike out the application for leave. Mr Parkop submits that Mr Vele had until the 11th December, 2007, to file and serve the Application and until the 14th December, 2007, to have the Application heard before a judge. This is because Rule 5/1/8 requires the application to be served 3 days before the hearing.

6. Mr Vele submits that Rule 5/1/7 was made in error. He submits that the true meaning intended was that the application be only filed in 14 days. Alternatively the court has power pursuant to Rule 5/10/32 to dispense with the requirements of Rule 5/1/7. Alternatively the court can extend time for whatever period is necessary by using the powers granted by Schedule 1.16 of the Constitution.

7. The issues then for the determination of the Court are:

a) what is the intent of Rule 5/1/7?

2. should the court exercise its powers under Rule 5/10/32 in favour of the Applicant?

100. can the Court extend time pursuant to Schedule 1.16, of the Constitution?
     

What is the intent of Rule 5/1/7?

8. Mr Vele submits that the Rule contains an error, that the intention was to only require that the application be filed in 14 days, that the word "made" should be read as "filed". He argues that 14 days to file and have the application heard is unrealistically short. He submitted that this view is supported by the fact that no rule imposes a time limit within which to file the application for review. It is further submitted that the slip rule might be used to overcome the problem.

9. The last submission can be disposed of first. The slip rule is applicable to errors of fact or law in a judgment which can be recalled and corrected in favour of an unsuccessful party: Dick Mune v Paul Poto (1996) SC508; The Election Of Governor General (No.3) (2004) SC752 at pp 17-18; James Marabe v Tom Tomiape (No.2) (2007) SC856 at [46-85]. The slip rule has no application to the interpretation of legislation.

10. The Supreme Court Election Petition Review Rules are subsidiary legislation. The same approach should be taken to their interpretation as to other legislation. If the plain meaning of the words can be applied without an absurd or impossible result, or departure from the intention of the statute discovered from a reading of the whole of the related provisions, no other aid to interpretation is required: Re Kunangel [1991] PNGLR 1; Ben Wafia v The State (2006) SC851 at [16].

11. Looking at the other provisions of the Rules, Rule 5/1/8 requires the application to be served before it is made. It would make no sense to require the service of an un-filed document.

12. Rule 5/2/11 stipulates that "the application for review shall be filed within 14 days from the date of grant of leave...". There is a clear distinction between the requirement in Rule 5/1/7 for the application to be "made" and the requirement of Rule 5/2/11 for the application to be simply "filed". This also militates against the suggestion that "made" should be read as "filed" in rule 5/1/7.

13. When one examines the provisions dealing with the management of the application for review one sees that:

a) the applicant is to request a transcript and file a draft index of the review book with the application for review (5/2/13);

b) the directions hearings are to be held within 14 days of filing the review (5/2/15 and 5/6/21);

c) the application and draft index are to be served within 7 days of filing (Rule 5/4/19);

4. the review book is to be filed and served within 14 days of the directions hearing (Rule 5/7/23);
   
5. that there is to be a pre-trial conference within 21 days of the directions hearing (Rule 15/8/26).
   

14. All of these provisions show that the intention of the Rules is to:

1. not treat an election petition review as an ordinary matter but as a special matter requiring the applicant's constant and detailed attention;
   
2. closely manage the review process;
   

100. reduce to a minimum the time between the various steps in the review.
     

15. The times stipulated are short and we expect there will be many circumstances which will arise which will justify the grant of extensions of time such as distance, communication difficulties, congestion of the court, the unavailability of documentation required, e.g. the judges reasons; provided the application is made promptly, within the 14 days period, and with a reasonable explanation.

16. The requirement to promptly make the application is underscored by the provision of Rule 5/1/7 that the application for an extension of time should be made within the same 14 days as the rule envisages the application being filed, served and heard.

17. We find that the provisions of Rule 5/1/7 are not a mistake nor an anomaly, but part of a scheme of rules intended to impose restrictions on the right of review, so as to establish in the shortest possible time, for the benefit of the people of an electorate, the identity of the person entitled to represent the people in and for the term of the Parliament.

18. We also agree with Kapi CJ (as he then was), in SCR No.6 of 2008 Michael Laimo v Andrew Trawen, Electoral Commissioner of Papua New Guinea and John Ilam, Returning Officer for South Bougainville Open Electorate 22 August, 2008, unpublished and unreported judgment, where his Honour held that where application to extend time under Rule 5/1/7 is not made within the 14 days, the application is rendered incompetent by operation of the Rules. It can be saved by a successful application under Rule 5/10/32, to which we refer below.

Should the Court exercise its powers pursuant to Rule 5/10/32 in favour of the Applicant?

19. Order 5 Division 10 Rule 32 is as follows:

"The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law."

20. Mr Vele submits that the Court ought to exercise its discretion under Rule 5/10/32 in his favour. He submits that the following facts support this contention:

a) the application was filed on 13th December, 2007;

b) Jalina J. died on 20th of December, 2007 and ceremonies to mark his passing disrupted Court proceedings;

c) the court vacation commenced in December;

d) Mr Vele's lawyer thought that the application was being filed under the old rules, where leave was not required. It was only when the review application was being filed that the lawyer was informed, presumably by the Registry, that the amended rules require leave to be sought, and the application for leave was then filed;

e) this was the first application filed under the new Rules.

21. As we have done under the discussion concerning Rule 5/1/7, we acknowledge that the times imposed by the Rules are tight. And for that reason, where prompt application is made for relief from the times imposed, with a reasonable explanation provided by sworn evidence, we expect that the relief sought would be readily granted.

22. Counsel for Mr Vele has referred to the "exceptional circumstances" principles set down for review applications in Avia Aihi v The State [1981] PNGLR 81 and State v Colbert [1988-89] PNGLR 138. However, as this has been established as not being the correct threshold test for the review of an election petition decision: Erie Ovake Jarvie v Bonny Oveyara and Electoral Commission of Papua and New Guinea (2008) SC935, it is not appropriate criteria to apply to applications made under Rule 5/10/32.

23. As with all applications made after the first opportunity to establish the appellant or applicant’s rights has been missed, the first issue to be established is why that time limit was missed, a Rule has not been complied with or otherwise why dispensation is required. There has to be some reasonable explanation. The second matter to be explained is the delay, if any, which has occurred between the expiry of the time limit and the making of the application to waive/extend the time limit. Next, it should be established that the relief sought by the applicant will not unduly prejudice the respondent's conduct of his case. Lastly it should be established that the grant of dispensation will enable all of the issues in contention to be promptly put before the Court without further delay. These are principles of general application and no doubt other relevant considerations will be established as the case law develops.

24. Mr Vele's lawyer has filed an affidavit setting out the times on which actions occurred from the filing of the leave application until the filing of the application to dismiss, as follows:

a) 18th December, 2007 - Mr.Vele's affidavit in support filed;

b) 20th December, 2007 - letter to the Registry requesting hearing date;

c) 31st December, 2007 - follow-up letter to the Registry;

d) 4th January, 2008 - Registry lists hearing for 7th January;

e) 7th January, 2008 - adjourned to first week of February by consent;

f) 6th February, 2008 - Respondent's lawyer appears;

g) 7th February, 2008 - Registry prefixes hearing for 14th February;

h) 14th February, 2008 - matter not listed;

i) 20th February, 2008 - Registry relists matter for 22nd February;

j) 22nd February, 2008 - before Kapi CJ, matter relisted for 7th March;

k) 7th March, 2008 - matter not listed;

l) 10th March, 2008 - Registry relists for 13th March;

m) 13th March, 2008 - relisted for 14th;

n) 14th March, 2008 - before Davani .J, it is adjourned to a future special fixture;

o) 1st April, 2008 - application to dismiss filed.

25. In this case, Mr. Vele has not filed any application under Rule 5/10/32. The application such as it is, arises only in submissions and is an application to dispense with the requirements of Rule 5/1/7. The written submissions were filed 1st July, 2008. One would have thought preparation of those submissions would have alerted counsel to the fact that there was no application filed. Apparently it did not because up to the day this matter came before us, there was still no application filed.

26. In our view the reasonable course to follow was this; when advised of the new Rules in December 2007, a copy should have been immediately obtained and thoroughly studied. This would have alerted Mr Vele to the fact both that an application for leave and an application to extend the 14 days, would have to be made immediately. However, not having made the application to extend the time, an application pursuant to Rule 5/10/32 should have been made as soon as possible. The very latest such an application should have been filed, was shortly after the application to dismiss was filed in April, while the events listed at paragraph 24, to some extent explained the delay.

27. Mr Vele cannot at this late juncture have the discretion of the Court exercised in his favour when he has not filed an application seeking it. Even if an application was filed shortly before the hearing, we would not have considered and held that the affidavit evidence provided a reasonable explanation for the delay since filing of the Application for Leave on 13th December 2007.

Can the Court extend time pursuant to Schedule 1.16 of the Constitution?

28. Schedule 1.16 of the Constitution is in the following terms:

" Sch.1.16. Effect of time limits.

(1) Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) The operation of Subsection (1) is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit. "

29. Mr. Vele submits that because the application for leave to review is made pursuant to the Court's jurisdiction under Section 155(2)(b) of the Constitution, Schedule 1 .16 can be applied to extend the time under Rule 5/1/7.

30. There is a misconception in this submission. As the terms of Schedule 1 .16 show, the provision is restricted in its application to a Constitutional Law which imposes a time limit. Section 155(2) (b) of the Constitution does not impose a time limit.

31. The time limit is imposed by the Supreme Court Election Petition Review Rules. The definition provisions of the Constitution provide a definition of "Constitutional Law"; which is the Constitution itself or an Organic Law. The Supreme Court Election Petition Review Rules is neither.

32. Schedule 1.16 of the Constitution can have no application to extending times under the Supreme Court Election Petition Review Rules.

33. Mr Parkop's application is granted. The application for leave is dismissed. Mr Vele shall pay Mr Parkop's costs of and incidental to the application.

Jerewai Lawyers: Lawyers for the applicant
Kelly Naru Lawyers: Lawyers for the respondent